“The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the deed wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration”

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6161 OF 2022

CAPTAIN PRAMOD KUMAR BAJAJ

….. APPELLANT

Versus

UNION OF INDIA AND ANOTHER

….. RESPONDENTS

J U D G M E N T

HIMA KOHLI. J.

1. The appellant is aggrieved by the judgment dated 31st May, 2022 passed by the High Court of Judicature at Allahabad, Lucknow Bench upholding the order dated 9th December, 2020 passed by the Central Administrative Tribunal, Principal Bench, that had turned down the challenge laid by him to an order dated 27th September, 2019, passed by the Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India communicating the decision of the President of India to compulsorily retire him, in exercise of powers conferred under Rule 56(j) of the Fundamental Rules.

FACTS OF THE CASE

2. The present case has a chequered history with multiple rounds of litigations spewed between the appellant and the respondents. To have an overview of the matter, we may briefly refer to some facts relevant for deciding the present Appeal. The appellant was a Permanent Commissioned Officer in the Indian Army, inducted in the year 1980. Due to a physical disability suffered by him in the course of Army operations, he was demobilized and released from service. In the year 1989, the appellant qualified the Civil Services Examination. He was appointed as an Officer and allocated to the 1990 Batch in the Indian Revenue Service. In due course of his service, the appellant was promoted to higher posts and on 12th January, 2012, he was promoted to the rank of Commissioner, in the Department of Income Tax. On 7th July, 2014, the appellant was selected and empanelled for appointment as a Member of the Income Tax Appellate Tribunal by the Selection Committee headed by a sitting Judge of the Supreme Court nominated by the then Chief Justice of India. On 15th July, 2015, the respondents forwarded the name of the appellant to the Appointments Committee of the Cabinet along with his vigilance clearance for appointment as Member (Accountant), ITAT. In the year 2016, the appellant was empanelled by the ACC for appointment as Joint Secretary to the Government of India. From the year 2017 onwards, started a saga of litigations between the appellant and the respondents, as a result whereof, his appointment as a Member of the ITAT, did not mature.

3. The first hurdle he faced was an adverse Intelligence Bureau report. This made the appellant approach the Tribunal for relief. Vide judgment dated 10th February, 2017, the Tribunal disposed of the Original Application filed by the appellant with a direction issued to the respondents to resubmit his adverse IB Report to the Selection Committee for it to take a final view on his appointment to the subject post. The said judgment passed by the Tribunal was assailed by the respondents in a writ petition before the High Court, which came to be dismissed on 30th May, 2017, with further directions issued to make the entire process of reconsideration of the appellant’s candidature by the Selection Committee, timebound. The Petition for Special Leave to Appeal preferred by the respondent – Union of India against the order dated 30th May, 2017 passed by the High Court, was also dismissed by this Court on 15th November, 2017.

4. On 29th November, 2017, a vigilance inspection was carried out in the office of the appellant. Based on the said vigilance inspection, the respondents issued a show cause notice to him on 31st January, 2018. Ten days before that, on 21st January, 2018, the vigilance clearance earlier granted in favour of the appellant, was withheld by the respondents. Both the aforesaid orders were assailed by the appellant by filing separate Original Applications before the Tribunal. Initially, an interim order was passed by the Tribunal observing that the show cause notice issued by the respondents would not impede the appellant’s consideration for appointment to the post of Member, ITAT. On 4th May 2018, another interim order was passed by the Tribunal, observing that withholding of the vigilance clearance of the appellant will not come in his way for appointment to the subject post. In the interregnum, on 11th April, 2018, the appellant was placed in the “Agreed List”, which is a list of Gazetted Officers of suspect integrity prepared by the Department. Pertinently, a second Petition for Special Leave to Appeal filed by the respondents against the interim relief granted by the Tribunal in favour of the appellant and duly confirmed by the High Court in WP (C) No. 22179-22187 of 2018 on 06.08.2018, was dismissed by this Court on 29.03.2019.

5. Aggrieved by the aforesaid action taken by the respondents of placing his name in the Suspect List, the appellant approached the Tribunal for a third time and in the said proceedings, an interim order was granted in his favour. Finally, vide common judgment dated 5th March, 2019, the Tribunal allowed two Original Applications filed by the appellant [O.A. No.137 of 2018 and O.A. No.279 of 2018], quashing inclusion of his name in the “Agreed List” and the consequential proceedings as also the decision taken by the respondents to deny him vigilance clearance. The Tribunal also directed the respondents to forward the name of the appellant to the appropriate Authority for selection/appointment to the post of Member, ITAT. However, the respondents did not comply with the said order and filed a writ petition before the High Court. Admittedly, no interim order was passed by the High Court staying the operation of the judgment dated 06th March, 2019, passed by the Tribunal.

6. Aggrieved by the non-compliance of the order dated 30th May, 2017, passed by the High Court in his favour, the appellant filed a contempt petition before the High Court. Vide order dated 13th August, 2019, the High Court permitted impleadment of the then Chairman of the Central Board of Direct Taxes 6 in the contempt petition and issued him a notice to show cause as to why he should not be punished for wilful disobedience of the order dated 30th May, 2017, passed in the writ proceedings.

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OFFICE OF CONTROLLER GENERAL OF DEFENCE ACCOUNTS
ULAN BATAR MARG, PALAM, DELHI CANTT. -110010

No.AN/II/2604/F R-56(j)/Q.E 03/2020

Date:01.06.2020

To
All PCsDA/PCA (Fy)/CsDA/AN-4 Section (local)
(Through CGDA website)

Subject: Retention in Govt. Service beyond the age of 50 years or on completion of 30 years of service- Sr.AOQs/ AOs/AD(OL)/ Sr.PS under FR-56(j)

In terms of Para 4, Appendix of DOP&T O.M. No. 25013/1/2013-Estt. (A) dated 21.03.2014 (copy enclosed), in order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, following procedure and guidelines have been prescribed for reviewing the cases of government employees covered under the aforesaid rules:

(1) The cases of Govt. Servants covered by FR 56(j) or FR 56 (I) or Rule 48 (1)(b) of CCS (Pension) Rules should be reviewed six months before they attained the age of 50/55 years or complete 30 years’ service/30 years of qualifying service, whichever occurs earlier.

(ii) Committee shall be constituted in each Ministry/ Department/ Office to which all such cases shall be referred for recommendation as to whether the officer concerned should be retained in service or retired from service in the public interest.

Also check: Stepping up of pay of senior Assistants of CSS drawing less pay on promotion in the Section Officers Grade than their juniors – OM No. 18/2/2007- CS-I dated 20.05.2014 – Writ Petitions filed in the matter

2. In this connection, please refer to HQrs Office letter No. AN/II/02604/99 dated 13.09.1999 vide which all controllers were requested to review all cases covered under FR 56(j) at least 6 months in advance.

3. However, it has been observed that some of the controllers are not adhering the time line as stipulated in the aforesaid orders. It is found that review under FR 56(j) in respect of some SAOs/AQOs who attaining the age of 50 years between January, 2020 to June, 2020 has not been carried out by the controller’s office.

4. It is therefore, requested to adhere strictly the time line mentioned in the aforesaid DOP&T orders and review all such cases at the earliest. Reviewed cases may be forwarded to HQrs office. If already forwarded, the same may be ignored.

(Amit Gupta)
Sr. Dy.CGDA (AN)

Source: CGDA

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(TO BE USED WHERE AN AUTHORITY OTHER THAN THE PRESIDENT IS THE APPROPRIATE AUTHORITY TO RETIRE A RAILWAY SERVANT)

ORDER

WHEREAS the Senior Divisional Operating Manager, Palghot, of the opinion that it is in the public interest to do so:

NOW, THEREFORE, in exercise of the powers conferred by clauses Sub Clause (ii) and b (i) of Rule 1802 (a) read with pars 620 (It) of Manual of Pension Rules 1950 of IREC, Vol. II Senior Divisional Operating Manager/Palghat hereby retires Shri. R.K. Unnikrishnan, Station Superintendent/MJS with immediate effect, he having already attained the age of fifty-five years on the date of acceptance (29.07.19) of Review Committee’s recommendation by the ADRM. R.K.Unnikrishnan, SS/MJS, will be paid a sum equivalent to the amount of his pay plus allowances for a period of three months, calculated at the same rate at which he was drawing them immediately before his retirement. If he so desires, he may represent in writing to DRM/PGT within three weeks from the date this notice is served on him.

P.L.Ashok kumar
Senior Divisional Operating Manager/Palghat

To,
Shri. R.K. Unnikrishnan
Station Superintendent/MJS

Source: Confederation

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Compulsory Retirement Pension

This is admissible to a Government servant who is retired as a measure of penalty by the competent authority. The amount of this Pension or Gratuity or both shall not be less than two-third and not more than full compensation pension that could be sanctioned to a Government servant on the date of such retirement. Date of retirement is the date on which penalty becomes effective. [Rule 40]

CCS FR 56(j) Rule is high sensitive for Central Government employees attained 50 and 55 years of age

HAND BOOK OF COMPULSORY RETIREMENT

The appropriate authority has the absolute right to retire, if it is necessary to do so in public interest, any Government employee as per provisions of Rules as under :-

FR 56 (j) Pension Rule 48 of CCS (Pension) Rules, 1972 

The cases of Government servant covered by FR 56(j) or Rule 48 of CCS (Pension) Rules, 1972 should be reviewed six months before he attains the age of 50/55 years or completes 30 years service, whichever occurs earlier in cases covered by FR 56(j) and 30 years of qualifying service under Rule 48 of CCS(Pension) Rules, 1972.

Time Schedule for review is as under:-

A register of employees who are due to attain the age of 50/55 years or complete 30 years of service to be maintained. The register should be scrutinized at the beginning of every quarter by a senior officer in the Ministry / Department and the review undertaken according to the above schedule.

Note : Compulsory Retirement as a penalty under CCS (CCA) Rules, 1965 is distinct from the above provisions.

All India Service: A Member of All India Services can be compulsorily retired in terms of Rule 16(3) of AIS (DCRG) Rules, 1958. On completion of fifteen years or twenty five years of qualifying service or attains the age of fifty years on any date thereafter. Detailed procedure is indicated in the annexed copy of DoPT letter No.25013/02/2005-AIS.II dated 28.6.2012

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Review of Work Performance

The below statement said in written reply to a question in Lok Sabha on 1st August, 2018 regarding steps taken to identify dull officers and action taken against such officers…

Review of performance of Government servants is an ongoing process under Fundamental Rule 56(j) and Rule 48 of Central Civil Services (Pension) Rules, 1972, which provide that the performance of a Government servant on attaining a specified age or qualifying years of service is to be reviewed and he/she can be retired in public interest.The instructions on the procedure to be adopted and various aspects to be kept in view while conducting periodical review under provisions of the said rules have been issued from time to time.

As per available information provided by cadre controlling authorities, performance of a total of 25,082 Group ‘A’ and 54,873 Group ‘B’ officers has been reviewed up to May 2018; and provisions of Fundamental Rule 56 (j)/ relevant rules were invoked/ recommended against 93 Group ‘A’ and 132 Group ‘B’ officers out of these.

Confidential Rolls (CRs) / Performance Appraisal Reports (PARs) of IAS officers are written for each financial year or as may be specified by the Government in the form and as per the schedule prescribed in the All India Services (Performance Appraisal Report) Rules, 2007. The appraisal form of IAS officers, inter alia, provides for comments on the overall quality of officers including areas of strength and his attitude towards weaker sections.

Source: http://loksabha.nic.in/

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One IAS officer Shri M.N. Vijaykumar, IAS (KN:81) has been imposed the penalty of compulsory retirement vide order dated 27.04.15.The penalty of Compulsory Retirement was imposed on Shri M.N. Vijaykumar, IAS (KN:81) on completion of departmental proceeding against the officer as per provisions of AIS (D&A) Rule, 1969.

Further, this department in exercise of the powers conferred under sub-rule 3 of Rule 16 of the All India Services (Death-Cum-Retirement benefits) Rules 1958, has prematurely retired, in public interest, one IAS officer namely Shri K. Narasimha (AGMUT : 1991).

With regard to IPS, the Ministry of Home Affairs has informed that penalty of compulsory retirement has not been imposed on any IPS Officer in last one year. However, the Ministry of Home Affairs, in exercise of the powers conferred under sub-rule 3 of Rule 16 of the All India Services (Death-Cum-Retirement benefits) Rules, 1958, in public interest has prematurely retired two IPS officers, namely, Shri Mayank Sheel Chohan, IPS (AGMUT:1998) and Shri Raj Kumar Dewangan, IPS (CH:1992) vide order dated 05.01.2017.

This was stated by the Minister of State in the Ministry of Personnel, Public Grievances and Pensions and Minister of State in the Prime Minister’s Office, Dr. Jitendra Singh in a written reply to question by Shri Kirti Vardhan Singh in the Lok Sabha today.

PIB

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Compulsory Retirement – Cracking down on CG Employees – While there was always a rule to compulsorily retire bureaucrats, the rule applies to only those who are at least 50 years old.
CG employees may get 3-4 times the salaries of their private sector counterparts, especially at the lower-to-medium levels, but the security of tenure that they enjoyed is now under threat because of the compulsory retirement threat.

A study for the 7th Pay Commission found a fresh government nurse earned 3.4 times her private sector counterpart, a teacher 2.7 times and a driver 2.3 times. While there was always a rule to compulsorily retire bureaucrats, the rule applies to only those who are at least 50 years old – on grounds of either corruption or inefficiency, this has rarely been used.

According to The Economic Times that reported the use of an obscure Rule 56(j) to sack 15 customs and central excise officials —including two at the level of commissioners—this was last invoked three decades ago. Indeed, a few months before it demitted office in 2014, the UPA government reiterated the rule, but it did precious little about it. The NDA reissued the order last September, but made its intentions clear since, while doing so, the order excerpted various Supreme Court judgments on this – in other words, CG employees were warned that the highest court in the land had ruled in favour of this in the past.

In the case of State of Gujarat vs Umedbhai M Patel, the SC had ruled that “whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest”. It then went on to say, according to the DoPT circular, “For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.”

Since the exercise is believed to have been kicked off at the instance of the Prime Minister’s Office, chances are that several more employees may be shown the door.

However, there are enough checks since there will be review panels before the compulsory retirement and then there is the process of appeal to the tribunal as well as to the courts.

Source: FE

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Ministry of Railways has sent a letter to all the GMs of the Indian Railways and the Production Units regarding Imposition of penalties of dismissal, removal or compulsory retirement and the Determination of appointing authority.

RBE No. 119/2015

GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)

No. E(D&A) 2012 Res-34

New Delhi, 30.09.2015.

The General Manager(P)
All Indian Railways and Production Units etc.
(As per standard list).

Sub: Imposition of penalties of dismissal, removal or compulsory retirement – Determination of appointing authority reg.

Attention is invited to Railway Board’s letter no. E(D&A) 2002 RGs-36 dated 25.11.2002 on the above subject relating to determination. of appointing authority for the purpose of imposition of the penalties of dismissal, removal or compulsory retirement on a Railway servant.

2. It was clarified in the above referred instructions that the intention of Rule 2(1)(a) of RS(D&A) Rules, 1968 is that the penalties of dismissal, removal or compulsory retirement from service should be imposed on a Railway servant only by the highest of the following authorities viz. the authority which actually appointed the railway servant to the relevant grade or post, or the authority which. is empowered to make appointment to that grade or post at the time of imposition of penalty. It was further emphasized that the penalty of dismissal, removal or compulsory retirement from service should not be imposed by an authority which has merely issued the offer of appointment or order of promotion with regard to the appointment or promotion ordered by a competent authority higher to that authority.

3. In a PNM meeting with the NFIR, the Federation has stated that inspite of the above mentioned instructions, in some instances, the penalties of dismissal, removal or compulsory retirement were imposed on a Railway servant by an authority lower than the authority which had actually ordered the appointment/promotion of the Railway servant. It is therefore reiterated that a lower authority who has merely issued/signed the order regarding appointment/promotion which has been ordered by a higher authority, is not competent to impose the penalty or dismissal, removal or compulsory retirement from service on such Railway servant. Such action is not only violative of the RS(D&A) Rules but- also unlikely to withstand judicial scrutiny. Railways may therefore impress upon all concerned to adhere to the provisions of Railway Board’s letter no. E(D&A) 2002 RGG-36 dated 25.11.2002, as brought out in para 2 above.

4. Hindi version will follow. Please acknowledge receipt.

(S.Modi)
Dy. Director Estt. (D&A)
Railway Board

Download Railway Board letter No. E(D&A) 2012 Res-34 dated 30.09.2015

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“Compulsory Retirement under CCS Rules – Following are the consequences of a law imposed by DoPT.”

The Armed Forces, Railways, Defence, and Deaprtment of Post are among the largest employers under the control of the Central Government. The largest among them, the Railways, employs more than 13 lakh employees. In all, the Central Government employees more than 34 lakh, and has more than 38 lakh pensioners on its list.

The Centre has now ordered the implementation of an old and forgotten law. According to Section 56 (J) and 56 (I) or Rule 48(1) (b) of CCS (Pension) Rules 1972, the performances of those between the ages of 50 and 55, and those who have completed 30 years of service must be reviewed by senior officers once every three months, vis. Jan to Mar, Apr to Jun, Jul to Sep and Oct to Dec. All the departments have been ordered to review the performances and implement this rule immediately. And also advised to constitute a Review Committee consisting of two Members at appropriate level.

Relevant orders to this effect were issued on September 11. Senior officials and employees of various departments are confused and terrified following the orders.

Some claim that the government has taken this step to stifle the indefinite strike to be held in November. The Central Government employees union and the railway employees’ union claim that, armed with this rule, the government can send home workers under the compulsory retirement scheme.

The order quoted, “If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest.”

Worse hit due to the new rule are the senior and experienced members of the staff. These employees are already affected by denial of increments and de-promotions. The federations claim that the Centre is treating these experienced employees as unreliable and talentless manpower and is hell-bent on terminating their services.

The government is conspiring to use this law and give compulsory retirement to employees over the age of 50/55 by branding them as unfit for work. The law also makes it possible for the government to find faults with their work.

The move is intended to intimidate the employees into not participating in the indefinite strike in November.

Source: 90paisa.org

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